Marine's sister testifies against ban on lawsuits

By Walter F. Roche Jr.
TRIBUNE-REVIEW

The sister of a Marine sergeant who died from untreated skin cancer called on a congressional committee Tuesday to reverse a nearly 60-year-old court decision that bars members of the military from suing for medical malpractice.

Ivette Rodriguez of Wurstboro, N.Y., told a subcommittee of the House Judiciary Committee that her brother Carmelo died because military doctors failed to treat the illness, which was first diagnosed when he enlisted nearly a decade earlier.

She said her brother, a healthy 190-pound soldier who served in Iraq, weighed less than 90 pounds when he died in November 2007. She said her brother was told the melanoma was a wart and to "keep it clean."

His medical record, she testified, showed that a military doctor had diagnosed the melanoma in 1997 but never told him. Subsequently, other military doctors misdiagnosed the cancer and told him it was a wart.

She said she was finally provided with a report on her brother's care only the day before the hearing.

Rodriguez was joined by several other witnesses supporting a bill introduced by U.S. Rep. Maurice Hinchey, D-New York, to partially overturn a 1950 U.S. Supreme Court ruling that bars active-duty members of the military from suing for malpractice.

Hinchey told the panel the bill was needed to give soldiers the same rights as prisoners in federal prisons who have the right to sue for medical malpractice.

Retired Maj. Gen. John D. Altenburg Jr. opposed the proposal, saying that changing the law "is not in the best interest of the military." He said existing compensation systems should be modified to provide for the care of soldiers injured by malpractice.

Barring such suits falls under what is known as the Feres Doctrine, the result of the U.S. Supreme Court ruling that concluded active-duty members of the military did not have the right to sue for malpractice or other acts of negligence.

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In a recent California ruling, a federal judge, citing the doctrine, said he had no choice but to dismiss a lawsuit brought by the widow of an Air Force sergeant who died after a routine appendectomy as a result of malpractice at Travis Air Force Base. The judge, saying he disagreed with the doctrine, called on the Supreme Court to overturn it.

Alexis Witt, the widow who brought the California suit and now lives in Utah, submitted a statement to the committee supporting Hinchey's bill. She said it was a needed step to hold members of the military accountable.

Witt said that not only was she barred from filing a claim, but Air Force officials also refused to disclose the details of the errors leading to her husband's death.

"The facts of even egregious cases become difficult, if not impossible, to piece together. We have only learned what the Air Force wants us to learn," her statement said. Witt plans to appeal the decision in her husband's death, ultimately to the Supreme Court.

Barbara Cragnotti, the chairwoman of a nonprofit formed to overturn Feres, wrote in a statement to the panel that members of the military "deserve the same constitutional and human rights we enjoy, the same rights they fight for."

Walter F. Roche Jr. can be reached at 412-320-7894.