Medical practitioners who err in the military cannot be sued for malpracticeBy Russell Carolloand Jeff Nesmith DAYTON DAILY NEWS Published: Saturday, October 11, 1997 Series - Part 7 of 7 |
Myrna Keith of Eldred, Pa., pauses at the grave of her son, SPC
Scott Wesley Keith. Keith died after getting 9 times the drug dose
ordered by a doctor at an Army base in Germany in 1988.TOM TAYLOR FOR THE DAYTON DAILY NEWS |
Myrna J. Keith wants justice, but she can't get it.Her 25-year-old son died after he went to a military clinic for a bee sting and got nine times the dosage of a drug ordered by the doctor.
The only physician on duty that day had just completed his internship, had no medical license and had just arrived at the clinic the month before.
The head nurse was not certified in advanced life-support techniques, and an essential piece of emergency equipment was missing a part. Other emergency equipment at the clinic was outdated, unsterilized or in a basement.
These circumstances would be powerful weapons in a wrongful-death suit.
But Myrna Keith didn't file a legal action. She couldn't. Her son was active-duty military, and a 47-year-old Supreme Court ruling called the Feres doctrine, along with subsequent cases applying it, bars lawsuits over medical malpractice to active-duty service personnel.
The Feres doctrine is not the only protection given to the military's nearly 600 hospitals and clinics and to the 147,000 people working in them. A variety of laws shields them.
The Military Claims Act, enacted in 1943, prevents even civilians - spouses and children of military personnel - from taking the government to court if the malpractice occurs overseas, where nearly a quarter of a million military dependants live.
The Feres doctrine and the Military Claims Act together bar 1.7 million people from suing for medical malpractice.
`They go to cut off your right leg and they cut off your left leg, and there is nothing you can do about it,' said Anne E. Brown, a St. Paul, Minn., attorney who specializes in suing the military for medical malpractice.
Even in cases in which civilian dependents can sue, they must file against the U.S. government, and they're not allowed to name doctors as defendants.
These laws and legal practices, adopted during and shortly after World War II, were designed not to interfere with the military's ability to win wars. But in a peacetime military, these protections more often extend to actions unrelated to military service.
The military is not unaware of the benefits these protections give doctors.
"As military officers and federal employees, one of the benefits we enjoy is the relative freedom from being sued personally as a result of job performance," a Navy commander wrote in a 1994 military medical journal. "In this litigious society, that is no small thing.'
Medical malpractice lawsuits, and the threat of them, represent one of the most important factors protecting civilians from death and injury at the hands of the doctors. The reason is simple:
Malpractice insurers charge higher premiums to doctors who lose lawsuits. Malpractice judgments in some states must be reported to medical boards, and malpractice payments are logged on a national database used by medical boards and potential employers to screen problem doctors.
At least two states, Florida and Massachusetts, even make certain information on malpractice judgments available to the public.
"It is plain and apparent to people who are dealing in the system all the time like I do that it's the deterrent effect - it's the threat - of being sued that is the cause of better medicine in the private sector,' said William T. Wood, a Rockville, Md., attorney who specializes in medical malpractice cases.
Pentagon officials, in a written statement, said the threat of lawsuits doesn't affect the way military doctors provide care.
"It is not logical or reasonable to think military physicians would provide health care differently for the population that can sue than for the one that cannot sue," the officials said.
Though active-duty service members cannot sue in court and win settlements for their injuries, the officials said, they can get financial assistance and free medical care from the Department of Veterans Affairs.
Military: lawsuits could undermine discipline
The Feres doctrine was written in 1950 when the Supreme Court ruled on three cases against the military - two for medical malpractice and a third for a barracks fire killing a soldier named Rudolph Feres.
The ruling curbed the flow of lawsuits against the military that began in 1946, when Congress allowed citizens to sue the federal government under the new Federal Tort Claims Act. That act barred legal actions for "any claim arising out of the combatant activities of the military or naval forces, or Coast Guard, during time or war.'
But the act didn't specifically exclude soldiers from suing doctors delivering babies, removing warts, filling cavities or providing other care unrelated to military service.
`I am the author of the (Federal Tort Claims Act) ... I never intended to preclude a suit by a soldier,' Rep. Emmanuel Celler was quoted in the Yale Law Journal in 1949.
Still, Feres and subsequent rulings applying it prevent use of the act for military medical malpractice cases involving active-duty personnel, even for acts unrelated to service. The ruling was written by Justice Robert Jackson shortly after he returned from prosecuting Nazi war criminals at the Nuremberg trials.
In the 47 years since Feres, numerous lawsuits sought to overturn it. But the doctrine stands, despite at least three attempts in the past 14 years in Congress to exempt medical malpractice from the Feres doctrine.
`They (the military) said you were undermining military discipline because you would be allowing an enlisted man to sue an officer,' said Rep. Barney Frank, D-Mass., who engineered all three bills. `I think that's pretty dumb myself as a rationale, but that's what they said."
A missiing ovary and military service
Sgt. Lindsay Vaughn doesn't think the removal of one of her ovaries and a fallopian tube had anything to do with her military service, but that's what a court told her.
"They (the military) said you were
undermining military discipline because you would be allowing an
enlisted man to sue an officer. I think that's pretty dumb myself as
a rationale, but that's what they said."
REP. BARNEY FRANK |
Vaughn underwent surgery in October 1991 to relieve her severe abdominal cramps. The next day her civilian doctor came to her room.
"He said the surgery went well. You seem to be missing your left ovary.... He said I'd probably been missing it since birth," Vaughn said.
But Air Force records show a 1985 surgery she had in Germany "documented presence of both tubes and both ovaries."
"The amazing thing is he didn't even look at my records, because if he had looked at my records, he would have seen I had both ovaries," said Vaughn, now stationed at Andrews Air Force Base in Maryland.
Her physician, Dr. Clio A. Harper Jr., had been sued as a civilian doctor at least eight times since 1976 - three involving patients who died. And he was the treating physician in a ninth case resulting in a judgment against the Air Force.
During an interview, Harper denied removing Vaughn's tube and ovary, but he added:
"I cannot absolutely say the tube and ovary were not there ... It would be virtually impossible for me to take her tube and ovary out."
Vaughn sued Harper in state court in Oklahoma City, but the court ruled that Harper was an employee of the government, making him protected by Feres.
In 1995, when a couple blamed Harper for causing their son to be deaf and brain-damaged, the Air Force came to the opposite conclusion, denying the couple's claim because Harper "was not an employee of the United States." The couple took the case to federal court in Oklahoma and won a judgment of $3.2 million.
`The absence of lawsuits means that some doctors who are incompetent may escape being disciplined,' Rep. Frank said. `A guy who is not competent who loses a lawsuit or two.... I think it's going to improve quality in that sense.'
No lawsuits allowed for overseas complaints
Feres doesn't prevent lawsuits for injuries to the more than 240,000 civilian dependents oversees.
Geography does.
Complaints for injuries to spouses and children overseas must be brought under the Military Claims Act.
Under the act, the military is judge and jury, deciding if a claim is justified and how much should be paid. No appeal to the courts. No judge. No lawsuit. No jury.
`The situation is akin to allowing a defendant to determine whether he should be sued by a plaintiff and, if so, allowing the defendant to fashion the remedy,' attorney Martha Neese of Minnesota wrote in the American Journal of Trail Advocacy in 1990.
The military also has no time limit to settle a claim.
It's been nine years since Millicent Jeffrey's infant daughter, Melissa, kept vomiting and running a fever while the family was stationed at an Army installation in Frankfurt, Germany. Medical records show doctors for weeks diagnosed the flu and missed Melissa's abnormal head growth caused by undiagnosed hydrocephalus, fluid in the brain.
`I suspect even an intern, with that history and that head growth circumference chart, could have come to the conclusion that something of concern was happening,' said Dr. Terry Watkin of the Virginia Neurologic Center, one of several medical experts in the case.
The girl's parents said Melissa suffers the effects of brain damage caused by the hydrocephalus, and she is enrolled in special education classes.
Jeffrey's legal claim for damages has been pending for five years.
With the Military Claims Act barring claims from dependents and the Feres Doctrine barring claims from active-duty personnel, overseas military medical facilities are shielded from any type of court action from military families.
Overseas installations also have been the target of some of the harshest criticism concerning substandard care.
A 1995 report from the U.S. General Accounting Office, the investigative arm of Congress, found equipment problems and untimely laboratory test results overseas.
The Army clinic in Germany where Scott Wesley Keith was taken in 1988 didn't have a "crash cart," a large metal box of drawers filled with medications and emergency equipment.
"There was a crash cart they kept in the basement,' an Army sergeant told a military investigator. `... It was outdated and certain items which were supposed to be sterile were not. At a later time, they began keeping it in the emergency room.'
The doctor who treated Keith, Dr. Joseph Pafumy II, said there was a smaller kit available that had the same drugs.
The clinic was also missing a functional laryngoscope, a vital piece of emergency equipment for a patient having trouble breathing, and a special flashlight needed to illuminate the larynx.
"It was a very sad case. I have not forgotten it," Pafumy said. "There's not a lapse of time that goes by that I don't think of that boy."
Besides having substandard equipment, overseas facilities sometimes are staffed with inexperienced doctors or doctors with questionable pasts.
Pafumy graduated from medical school the previous year and had completed his internship only a month before arriving at the clinic. Pafumy said he was qualified at the time to be licensed in any state, and his lack of experience had nothing to do with what happened. He said he ordered the proper amount of the heart drug Lidocane, but somehow Keith got nine times that amount.
Dr. Archie Don Walden joined the Army in 1989 as an investigation into his care of 15 patients during the previous 13 years was about to be opened in Minnesota. The Army sent him to Germany, where he became a clinic commander after a year. Walden said the investigation had nothing to do with his decision to join the Army.
No blame, no names
The military can be sued for medical malpractice, as long as the injury didn't involve an active-duty service member and the treatment didn't occur overseas. But plaintiffs don't use the same court system or the same laws most Americans do for such cases.
Cases against the military are filed in federal court under the Federal Tort Claims Act, offering its own set of barriers for injured patients and still more protections for accused doctors.
Judges - not juries who are often swayed by emotional testimony to grant large judgments - decide Federal Tort Claim cases. And fees for attorneys are limited to 20 to 25 percent of damages, compared to as much as 40 percent in some state courts.
Not only are potential fees lower, the costs can be higher and witnesses more difficult to find. Unlike civilian malpractice cases, witnesses in military cases are subject to constant transfers and can be scattered all over the world.
Dallas attorney James C. Barber, a Navy attorney during the Vietnam War, recently won a $2.4 million case against Fort Benning, Ga. The client hired him in Texas after she couldn't get a lawyer in Georgia.
`I can show you a list of lawyers in Georgia who turned this case down,' Barber said.
By not being named as defendants in federal malpractice suits, military doctors are freed from one of the most significant fears faced by their civilian counterparts: the threat of being held personally and financially accountable for their actions.
Without a personal record for malpractice, they are also freed from paying high insurance premiums when they leave the service and get malpractice insurance.
Dr. William M. Lindel was the treating physician in a medical malpractice lawsuit that the Air Force settled for $270,000. But when he applied for medical malpractice insurance so he could practice in North Carolina as a civilian, he answered `No' when asked, `Have any claims or suits ever been made or brought against you?'
The Air Force, Lindel said, told him to answer that way.
"I was not being sued," he said.
`You can't sue them. There's no financial accountability,' said Tacoma, Wash., attorney Robert I. Deutscher, a former Army attorney who represented one of the service's largest hospitals.
"If you're a (civilian) OB-GYN doctor ... and if you get sued enough times, your insurance company is gong to drop you. You can't do that with the government. There's total anonymity."
| Sidebars to Part 7: | SUPREME COURT CHALLENGE TO LAWSUIT BAN REJECTED The Court this week refused to review the ban in the case of a world-class runner who was left crippled.
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