In Levin v. United States of America, the United States Court of Appeals for the Ninth Circuit upheld the dismissal of a claim for battery arising from the alleged performance of ocular surgery without the patient’s consent. The court held that “the Gonzalez Act makes the [Federal Tort Claims Act (FTCA)] the exclusive remedy for tort actions against military medical personnel.” Furthermore, the court stated that the FTCA preserves the government’s “sovereign immunity against ‘[a]ny claim arising out of . . . battery.’ 28 U.S.C. § 2680(h).” Thus, the plaintiff lacked a basis for recovery against either the United States or the individual physician.

The Ninth Circuit specifically rejected the plaintiff’s contention that the Gonzalez Act waives the United States’s sovereign immunity for battery claims arising from medical care. 10 U.S.C. § 1089 (e) provides that “[f]or purposes of [the Gonzalez Act], the [FTCA’s preservation of immunity against battery claims] shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions.” The court concluded that subsection (e) is “not . . . a waiver of sovereign immunity for battery claims brought against the United States, but . . . an expression of personal immunity from battery claims brought against military medical personnel.”

In so holding, the Ninth Circuit joins a minority of courts immunizing the government and its physicians for the most extreme and indefensible cases of medical malpractice

The Ninth Circuit’s opinion and the details of the case can be read here: http://www.leagle.com/xmlResult.aspx?page=2&xmldoc=In%20FCO%2020111123144.xml&docbase=CSLWAR3-2007-CURR&SizeDisp=7

There has been a recent string of cases where members of the active duty military that have found themselves the victims of medical malpractice and negligence at the hands of military doctors and medical professionals have attempted to sue the government, despite the Feres Doctrine shielding the government from such action, in an attempt to get compensation for their injuries. It had been the hope of many of these cases to set a new precedent through legal challenges to the Feres Doctrine, but a growing number believe there is another way.

Instead of trying to set a legal precedent, there has been talk of Congress taking action that while not eliminating Feres, would make exceptions for thinks like medical malpractice suits by active duty military and their families. Congress has tried this in the past, with Rep. Maurice Hinchey (D-NY) most recently authoring a bill in 2009, but it’s not known if the current makeup of Congress will allow such a bill to pass.

A big problem with military medical malpractice is that, strictly speaking, military servicemen can’t file a claim against the United States government. This rule stems from a court case in 1950, Feres v. United States. This court case was actually a combination of three different court cases where active duty servicemen, or their families, were filing suit against the government for personal injury or wrongful death.

The court decided that the US government was protected against Tort Liability claims from active duty servicemen, but did leave in some allowances, specifically, that their families could file claim if they were the injured party, and that the servicemen could file a claim on behalf of a family member that could not file themselves.

That being said, the Feres Doctrine is the main case cited when looking at why a claim from an active duty servicemen was denied. Claims that have to do with medical malpractice are handled by the Veteran’s Affairs office, but again, no claim can be filed.

The Tennessee Veteran’s Home is a nursing home for retired veterans of the military which five years ago was under investigation by the Department of Justice for failing to properly care for their patients, some of which they were found to have contributed in their deaths. Now it’s happening all over again.

In March of last year Thomas Grelen, an Army Air Force veteran, recently fell, breaking his leg in several places which ended up requiring that the leg be amputated. Several days after the surgery to remove his leg, the retired Staff Sargent died.

Despite notations in his medical chart that he was prone to falling, at the time of his injury he was being attended to by only one female technician, who didn’t assist him enough in his attempt to sit down on his bed. He slipped off and his leg severely broke, being pinned underneath him. He was left in this position until the paramedics arrived 20 minutes later.

Thomas’ family sued the Veteran’s Home for negligence, medical malpractice, and breach of standards of care, which opted to settle out of court for $245,000 (the family sought the maximum of $300,000 when they first sued) rather than go to trial.

Two years ago Senior Airman Colton Read was an imagery analyst for the Air Force. Deciding to have elective surgery on his gallbladder to relieve him of chronic pain so that he could deploy to a warzone, Read came out of surgery missing both of his legs.

During the procedure, which was supposed to be routine, a resident punctured a major blood vessel, resulting in blood flow issues which caused the tissue in his legs to begin to die. The doctors were forced to amputate both of his legs, just above the knee and one at mid-thigh.

Thanks to the Feres Doctrine, the Air Force is preventing Read from collecting $100,000 from the Servicemember’s Group Life Insurance traumatic injury program to help alleviate the new costs associated with having to live without his legs.

The Feres Doctrine “protects” the Air Force by preventing Senior Airman Read from taking legal action against his military doctor or the hospital. Now, instead of a fulfilling career serving his country, Read can’t even get the funds he needs to help himself and his family in their time of need.

As previously reported here, Staff Sargent Adam Cloer had filed a medical malpractice suit after doctor’s failed to diagnose his wife’s rectal cancer, even though she presented with the typical symptoms. The case had been settled, but only now are the details coming out.

While pending the signature of the US Attorney General, the claim has been settled for $2.15 million and the Staff Sargent was able to file the claim because of a loop-hole in the Feres Doctrine, which typically prevents military personnel from filing suit against the government for malpractice by military doctors.

The Feres Doctrine doesn’t apply to the families of military personnel, only the personnel themselves, so while Staff Sargent Cloer did in fact file a claim, it was on behalf of his wife, who was not in the military herself.

Staff Sargent Adam Cloer had his medical malpractice claim against the Blanchfield Army Community Hospital at the installation on the Tennessee-Kentucky state line reach a settlement which was approved by a judge.

Staff Sgt. Cloer brought the claim against the hospital after they failed to diagnose his wife’s rectal cancer, even after symptoms persisted and no screenings were done.

Both Staff Sgt. Cloer’s attorney and the attorney for the government decline to comment after the judge made his ruling.

To read more about this story, click on this link: http://www.necn.com/08/08/11/Settlement-reached-in-Army-malpractice-c/landing_politics.html?&apID=af59bbf0b15e4ad18107be86eefe812f

After caring for injured military personnel for more than a century, Walter Reed Army Hospital is closing.

A new medical center is being built and will be known as the Walter Reed National Military Medical Center.

From CBS 11 in Arlington (http://cbs11tv.com/local/medical.mistake.military.2.1091010.html)

Jessica Read is still stunned about what happened to her husband. “It’s very hard for us to understand.”

Last week, 20-year-old Colton Read, who grew up in Arlington and who’s now in the U. S. Air Force, went to have laparoscopic surgery to remove his gall-bladder at David Grant Medical Center at Travis Air Force Base near Sacramento.

His mother, Shelly Read-Miller says he wasn’t worried. “He said ‘Mom, this is routine, it’s no big deal.’”

But what happened during surgery turned out to be a very big deal.

Jessica Read says around 10 a.m., about an hour into the procedure, “A nurse runs out, ‘We need blood now,’ and she rounds the corner and my gut feelings is, ‘Oh my God, is that my husband?’”

She says his Air Force general surgeon mistakenly cut her husband’s aortic artery, but waited hours to transport him to a state hospital which has a vascular surgeon. “It took them until 5:30 to get him to UC Davis. I don’t understand.”

Because Read lost so much blood during that time, doctors had to amputate both legs. His mother sobbed, “I watched him take his first steps, and now his legs are gone.”

Read is still in intensive care, and doctors can’t remove his gall bladder for fear of infection.

Read the rest of the story at http://cbs11tv.com/local/medical.mistake.military.2.1091010.html.

Last night, CBS News followed up with an update on the story of Carmelo Rodriguez, a Marine who died of skin cancer that military doctors initially noticed but left untreated. Due to the Feres Doctrine of 1950, active duty personnel and their families are forbidden to sue the United States government for medical malpractice. Below is the video clip of the report: