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WHAT OUR SOLDIERS REALLY NEED: LAWYERS --
Opinion from Jonathan Turley in USA Today.
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http://blogs.usatoday.com/
oped/2007/04/post_38.html
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OPINION
What our soldiers really need: Lawyers
You’ve heard the stories of injured troops
suffering unconscionable indignities and sub par care upon returning
from the battlefields of Iraq. What you may not know, though, is that
these same soldiers have no recourse when negligence maims or even kills
them. Servicemembers have no voice in a court of law.
By Jonathan Turley
The president and Congress have been falling over themselves to pledge
better care for our wounded veterans in the wake of the scandal over
"squalid" conditions at the Walter Reed Army Medical Center that
included mold, rats, cockroaches, rotting walls and callous treatment of
patients. The president has empanelled the perfunctory "blue-ribbon
commission." The hospital walls have literally been whitewashed, so
politicians can use them again as backdrops for speeches about "nothing
being too good" for our troops. Yet no one is talking about the one
thing that soldiers and sailors are most desperately lacking: They don't
need another spit and polish; they need lawyers.
For decades, our military members have been barred from suing for
medical malpractice and other forms of negligence by the government.
Whether it is a military doctor cutting off the wrong leg or a military
gasoline station cutting a brake line, military personnel are not
allowed to seek legal relief as other citizens can. The result is that
they are victims of grotesque forms of negligence that have not been
widely seen in the civilian world for more than a hundred years. In the
civilian system, the threat of lawsuit serves a critical deterrence of
negligence by the government, companies and others. A rational actor
will avoid liability costs by taking measures to minimize accidents.
Most Americans do not know that we deny our servicemembers the basic
right to sue when they are injured by negligence. They live in a type of
tort-free zone where their injuries are subject to relatively minor
levels of compensation. With the silent approval of Congress, we have
created a system of discount citizens who become easy fodder for
incompetent or even criminal actors. Indeed, killing a soldier on an
operating table or in a military recreation area is a virtual bargain at
a fraction of the cost of a full-value citizen.
The military's loss of legal protections is the result of a 1950 Supreme
Court ruling on a series of cases that became known collectively as the
Feres Doctrine. It was named after Army Lt. Rudolph Feres, who died in a
fire allegedly caused by an unsafe heating system in his New York
barracks. In this and later opinions, the Supreme Court interpreted the
Federal Tort Claims Act to effectively bar any tort actions by
servicemembers, even though Congress exempted only "combat-related"
injuries. The court unilaterally decided that even injuries in peacetime
that are far removed from any combat-related function are still
"incident to service." Thus, in one of the Feres cases, a soldier was
barred from suing after an Army doctor left a 30-by-18-inch towel inside
him marked as property of the "Medical Department U.S. Army."
Little deterrence
As a result of the Feres Doctrine, there is little deterrence for
military negligence beyond self-regulation, bad publicity or a political
scandal. Because most accidents are isolated and military personnel tend
to stay within the chain of command, these are relatively low risks for
military tort-feasors. Moreover, since such accidents are not litigated,
there is no reliable system to determine the rate of accidents in the
massive military complex. Thus, we cannot reliably compare the accident
rates in recreational or medical areas with their counterparts.
The military medical system is a prime example of what happens when
patients are stripped of their legal protections. The military has long
had many talented and dedicated doctors and nurses. Nevertheless, it
also has long been plagued by scandals involving everything from doctors
without medical licenses to medical treatment that borders on the
medieval. Consider a few examples from the military
malpractice-free-zone:
*Lt. Cmdr. Walter Hardin spent 11 months with red lesions from his legs
to his torso that a doctor classified as eczema. It was correctly
diagnosed as cancer shortly before he died.
*Sailor Dawn Lambert had to have a fallopian tube removed, but military
surgeons left five sponges and a plastic marking device in her abdomen.
They remained there for months until resulting complications forced a
second surgery to remove her other fallopian tube, leaving her
infertile. She was given $66 monthly in disability pay.
*Linda Branch lost her husband while he was serving in the Air Force
after he was turned away twice by a military hospital that told him his
intense stomach pains was nothing more than stomach flu. He died of a
bowel obstruction.
*Navy Petty Officer Joe Cragnotti went to a military hospital with
pneumonia, which is treatable with antibiotics. The doctor left it
untreated, then Cragnotti suffered brain damage.
*Air Force Staff Sgt. Dean Patrick Witt had appendicitis but was
repeatedly misdiagnosed and sent home with some antibiotics. When he
finally collapsed at home, he was rushed into surgery. He came out
brain-dead. It's alleged that a series of malpractice led to his death,
including the use of a pediatric rather than an adult device to open an
airway when he had trouble breathing.
When civilian doctors leave a patient paralyzed or crippled for a
lifetime of care, the family members often receive millions in
compensation. In the military, the families receive a couple thousand
dollars a month and, you guessed it, more military medical care. Dorothy
Meagher found herself carrying for her son after he went in to have a
cyst removed at a Navy hospital. Her family alleged that, due to an
overdose of anesthetics and the failure of a Navy doctor to immediately
call for assistance, her son was left a quadriplegic.
Unanswered questions
Many families in the military never know that they were the victims of
malpractice because, without discovery, there is no routine way of
forcing such disclosure. For example, Army Staff Sgt. Michael McClaran
had a simple surgery for acid reflux. He said he was not told that the
surgeon had severed two critical nerves the cause of chronic respiratory
and digestive problems.
Feres extends beyond medical malpractice. It bars lawsuits in a vast
array of activities in such areas as travel, recreation, housing,
restaurants, bars and service stations military enterprises often run in
competition with civilian businesses. Thus, when a rented water ski
loses its brakes or a soldier is raped at a concert, the military
invokes Feres and walks away immune from its own negligence.
Liberals and conservatives on the court such as Justices John Paul
Stevens and Antonin Scalia have denounced the court's continued use of
this doctrine, as have dozens of lower court judges. This doctrine has
done more harm to military personnel and families than any court-made
doctrine in the history of this country.
Congress must amend the Federal Tort Claims Act to put an end to this
disastrous doctrine. We can no longer afford to leave our servicemembers
in the hands of politicians who express shock every 10 years as new
scandals regularly emerge. Some lawmakers knew of the appalling
conditions at Walter Reed but took no legislative action.
The fact is that military hospitals are often treated as little more
than a reservoir of human props for political photo ops. The only other
part of Reed that members of Congress routinely visit is the VIP floor
located on the top floor. Known as the Eisenhower Executive Nursing
Suite, it's where high-ranking politicians, jurists, generals, admirals
and diplomats are treated. Of course, the politicians, judges and
foreign dignitaries are allowed to sue for any negligence.
Former senator Bob Dole, who co-chairs the new blue-ribbon commission,
was treated there and recently noted that he never saw anything to
complain about. That is not surprising since, unlike the vermin-infested
and mold-covered rooms of wounded soldiers, politicians are given suites
that include fine carpets, antique furniture, separate dining rooms and
fine china.
If members of Congress truly want the best for our troops, they should
start by giving them the same legal protections that the members
themselves enjoy. No one is asking for Congress to treat our soldiers as
high-value VIPs, but simply full-valued citizens with the same
protections as the people they are defending around the world.
Jonathan Turley is the Shapiro Professor of Public Interest Law at
George Washington University and a member of USA TODAY's board of
contributors. He is the author of a three-part study of the military,
including its legal and medical systems.
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Larry Scott --
