Top Court Refuses to Reconsider Ban Against Some Military Malpractice Lawsuits But Controversy Continues

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Top Court Refuses to Reconsider Ban Against Some Military Malpractice Lawsuits But Controversy Continues

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Feres_DoD1.jpgWASHINGTON — Military medicine may have dodged a bullet this summer when the U.S. Supreme Court refused to reconsider a case involving the Feres Doctrine, which, in effect, bars active-duty personnel from filing medical malpractice lawsuits against DoD health care providers. Opponents of the law, however, vow to continue the fight in Congress, the only remaining battleground.

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Although the court accepted briefs on whether to hear the case, it ultimately refused to consider the appeal in the case of SSgt. Dean Witt, an active-duty servicemember who allegedly died in 2004 from poor postoperative care following an appendectomy at the David Grant Medical Center at Travis Air Force Base.

Attorneys for Witt’s widow, buoyed by a U.S. District Court decision that turned down the lawsuit but called the situation “unfair and irrational,” argued unsuccessfully that Witt was on leave when the alleged malpractice occurred and that the doctrine should not apply. They also petitioned to have the Supreme Court overturn its 1950 decision in Feres v. United States, in which the court ruled that active-duty personnel injured “incident to service” cannot file claims against the United States under the Federal Tort Claims Act (FTCA).

Arguing against review on behalf of the United State, the U.S. Solicitor General’s office said, “Such policy issues are the concern of Congress rather than the courts, and Congress has for 60 years declined to overturn or limit Feres, despite numerous opportunities to do so.” The government’s attorneys also noted that Congress has refused to make the doctrine inapplicable to medical malpractice cases. 

Medical Malpractice

The court said it did not believe Congress intended to cover active duty personnel under the FTCA because a compensation system had already been established to care for injured soldiers. If someone on active duty is injured by the malpractice or negligence of military medical personnel or other federal employee, the injuries are generally categorized as “service- connected” and so the injured individual could not file a claim against the US under the FTCA.

U.S. Rep. Maurice Hinchey, D-NY, who introduced an unsuccessful 2009 bill to abolish the doctrine, said recently that he planned to reintroduce it, even though the bill did not have enough support to pass the House when he first introduced it.

Despite the court’s refusal to hear the case and Congress’ refusal, thus far, to act on it, controversy continues, at least some of it fueled by trial-lawyer associations anxious to open up a new litigation area. Some of the support also comes from military-service organizations.

Steve Stobridge, Col. Ret., USAF, director of government relations at the Military Officers Association of America (MOAA), an organization representing military officers and their families, said that MOAA believes active-duty military should have that right to sue and that it is a matter of principle.

“Active-duty military people are the only military population that can’t go to the courts for malpractice right now,” he said, pointing out that retirees, dependents and survivors can sue. “It is only the active-duty member who can’t.”

George Anderson, MD, a retired major general in the Air Force who served as a former military flight surgeon before retiring in 1997 and currently is executive director of AMSUS, the organization of military physicians, said he agreed with the Supreme Court’s action. Overturning that law and allowing more malpractice suits is not the answer, he explained.

“Fundamentally, I don’t believe malpractice suits in civil law ensures health-care quality. I just don’t believe it. To think that the idea that you would bring on more malpractice suits is going to help health-care quality defies linear reasoning in my mind,” he told U.S. Medicine.

Anderson also cautioned that allowing more medical malpractice suits could increase the practice of “defensive medicine” in the military. “This is the argument that says ‘defensive medicine includes doing more lab tests.’ It actually runs up costs, because you are trying to protect yourself against doing wrong, instead of focusing on doing right,” he said.

A recent survey done by an Atlanta-based clinical-staffing organization, Jackson Healthcare, found that physicians working under contract with the federal government indeed practice less-defensive medicine than those in the private sector. Its web-based survey of 347 physicians found 48% percent of government-contracted physicians reported practicing defensive medicine, far less than for private-sector doctors. Similar surveys by the Gallup organization and Jackson Healthcare in 2010 found that 73% and 92% of private-sector physicians, respectively, admitted to practicing defensive medicine.

Stobridge disputed the idea that military doctors would practice more defensive medicine under threat of litigation, saying that is not currently occurring with their patients who do have the ability to file a malpractice lawsuit.

“Are they practicing more defensive medicine on retirees, survivors and family members who can sue? I don’t think they are providing different levels of care to them than they are to servicemembers,” he told U.S. Medicine.

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