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| Shapiro, Washburn & Sharp

Tech Sgt. Connie Wilson gave birth to a healthy baby boy on Langley Air Force Base in Hampton, Virginia (VA). Twelve hours later, she was dead. The circumstances leading up to her death indicate a level of negligence by the doctors who delivered Connie’s child. Her uterine artery was cut and there were two surgical sponges left in her abdomen. Despite this glaring malpractice, her family is unable to pursue any legal action against the doctors in question.

According to an article in The Virginian-Pilot, the military is free from accountability to active military patients when it comes to medical malpractice due to a set of cases from the 1950s decided by the Supreme Court known as the Feres Doctrine. One of the cases featured a soldier who was barred from suing the military even after discovering an Army doctor left a towel marked “Medical Department U.S. Army” inside his body (very similar to what happened to Connie Wilson).

As a personal injury lawyer practicing for over 20 years in Virginia (VA), I’ve seen multiple cases of medical negligence. I handled a malpractice case involving a woman whose husband was in active service. She underwent obesity-reducing gastric bypass surgery in December 1996 by a surgeon in at Portsmouth Naval Hospital in Portsmouth, (VA), and endured horrendous after effects due to the improper stapling of the gastric pouch. These effects included vomiting, ulceration, the loss of her teeth due to nutrient deficiency, and multiple surgeries to correct the initial error. I argued the case effectively by illustrating the damage done to my client’s body and the lifelong ramifications. The judge ruled in our favor.

Another case example was in 2002 when my colleague John Cooper, also a personal injury lawyer, represented a 43-year-old woman who went in for a hysterectomy, but the surgeons and staff left a medical sponge in her body. This wasn’t discovered for six months and led to the creation of fistula in her bowels. This required an additional surgery. This client was able to recover under Virginia medical malpractice laws, unlike active military men and women victimized by negligence at a U.S. military hospital or clinic.

It’s outrageous that our brave men and women in the military have no legal options when medical malpractice occurs at a military run facility, but that the same military person can recover for the same malpractice in a private, civil hospital. Under the current unfair, illogical Feres doctrine, the spouse and family members of our courageous military men and women can sue under the Federal Torts Claim Act for malpractice over their care, but the active military member has no recourse! So Connie Wilson’s family including her parent’s Tommy and Connie Wilson are left with no legal remedies, but if the malpractice happened to a spouse, there is a remedy. Totally illogical in today’s world.

Another limiting factor is the fact that actions for medical malpractice involving military families (against the government) can only be filed in federal court and no jury trial is available. Let’s call a spade a spade: The current law makes no sense.

U.S. Rep. Randy Forbes (R-Va.) is wrong when he said, “How do you look someone in the eye and say we’re going to take a service member who was not in a combat situation and give them an elevated position for compensation and recovery that we would not give to someone who was in combat? I think that would create a huge problem in terms of morale.”

The better question to ask is, “How do you look a military service member in the eye and say we’re not going to provide elevated compensation and recovery if a military doctor does something wrong while you’re under their care in a civilian, not cambat setting?” We can make the situation more fair by allowing suits in the civilian setting-not in a combat setting.

The fact is, the military should be held accountable when medical malpractice occurs. Congress needs to act and pass legislation nullifying the outdated, archaic law enabling military doctors to shirk their responsibilities when malpractice occurs involving active military—especially in the civilian setting.. It’s just basic, common sensewyAbout the Editors: Shapiro, Cooper Lewis & Appleton personal injury law firm is based in Virginia (VA), near the NE North Carolina (NC) border and handles car,truck,railroad, and medical negligence cases and more. Our lawyers proudly edit the Virginia Beach Injuryboard, Norfolk Injuryboard, and Northeast North Carolina Injuryboard as a pro bono public information service. Lawyers licensed in: VA, NC, SC, WV, DC, KY. PA

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