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Dismissal Sought in Airman?s Medical Malpractice Lawsuit

By Steven M. Levin and John J. Perconti

To uncover unfairness in the medical malpractice process one need look no further than military service members who are seriously injured (or killed) by mistakes made in military hospitals. For example, the Star-Telegram is reporting this week on efforts by the U.S. Government to get a case dismissed in which they were named as defendants. At the crux of the lawsuit are claims by a retired Air Force airman that he had both legs amputated as a result of malpractice while at a military hospital.

The Case
The service member in this case visited a military hospital in the summer of 2009 in order to have his gallbladder removed. The supposedly routine procedure needed to be completed before the airmen was set to be deployed overseas. The surgery was laparoscopic, meaning it used laser technology to be minimally invasive.

Unfortunately, the routine surgery went awry when medical professionals performing the operation made a serious error--the man?s aorta was lacerated. This resulted in hemorrhaging that doctors were barely able to contain. In fact, it was several hours before doctors even figured out what happened and fixed the problem. Even then, mistakes were made. The aorta was sewn shut, preventing blood from flowing into the man?s legs. Eventually the patient was transferred to a civilian hospital. However, by that time there was little that could be done and the man?s legs were amputated--one of them all the way to the hip.

Each Chicago medical malpractice attorney at our firm understands that these sorts of serious error are classic examples of medical malpractice that deserve accountability and redress. The man filed a lawsuit against the negligent hospital and the U.S. government which runs the facility.

However, the government recently moved to have the case dismiss, and in all likelihood the motion will be granted.

Why?

Because of a legal principle known at the ?Feres Doctrine.?

The Feres Doctrine
The Doctrine refers to a 60-year old U.S. Supreme Court case which essentially bars service members from collecting medical malpractice, wrongful death, or other tort claims against the government for negligent conduct. The effect of the holding in that 1950 case is the take away the rights of all service members to receive fair redress when victims of negligence. In other words, service members are denied rights that regular citizens receive. Like many others, our Illinois medical malpractice lawyers recognize the extreme injustice of the rule as applied.

This latest suit is only latest in a string of efforts seeking to challenge the old precedent. Only a few years ago another case was brought seeking to hold the government accountable for the death of an airman who died after a botched appendectomy. In that case the lower court, applying the Feres Doctrine, dismissed this suit. The U.S. Supreme Court declined to overturn the lower court ruling--in many ways a quiet affirmation of the old precedent.

However, the plaintiff in this case plan to appeal to the Supreme Court if their suit is dismissed. The hope is that the nation?s highest court may finally change course and recognize that those hurt by medical malpractice in medical hospitals deserve the same basic legal rights as everyone else.

See Our Related Blog Posts:

Continued Pushback Against the ?Feres Doctrine? in the Military

U.S. Government Tries to Expand Immunity from Med Mal Lawsuits for Military Families

Full post as published by Illinois Medical Malpractice Blog on June 14, 2012 (boomark / email).