The Jury Talks Back

8/15/2009

Doctor Screws Up, Patient Loses Legs, Doctor Immune to Suit

Filed under: Uncategorized — Kevin M @ 10:47 pm

As I was saying below, the government is different.  Scott Jacobs points out that one of those differences is government can prevent itself from being sued, even for the willful and even criminal actions of its employees and agents.

Case in point:

Last month a military doctor was supposed to take out Colton Read’s gallbladder through laproscopic surgery.  Instead, the doctor nicked Airman Read’s aorta, causing internal bleeding.  The doctor stopped the surgery, but apparently did not notify anyone of the error until some time later.  It wasn’t until 8 hours later that Read’s aorta was repaired, but by that time the damage had been done.  His legs, deprived of normal bloodflow for 8 hours were dead and had to be amplutated.

The doctor and the government are immune to any suit:

Colton Read’s family is finding limited abilities to react to the Airman’s situation. In a case of alleged malpractice, most would pursue a lawsuit against offending parties. However, a law enacted in the 1950s known as the “Feres Doctrine” prohibits service members, spouses and family members from bringing a suit against the United States Government following medical mishaps.

And they still haven’t taken out the gallbladder.

UPDATE (8/16 12:19pm):  More complete information at ABC News:

Instead of immediately calling in a vascular surgeon to repair the damage to the artery that carried blood from the heart, doctors at the air base waited 8 1/2 hours before taking him to the UC Davis hospital.

and

[T]he U.S. surgeon general is investigating what happened to Read.

46 Comments

  1. That’s strange, Kevin, I haven’t heard this story on the network news or in the papers.

    It’s relevant, as the immunity from accountability for the government definitely relates to their running health care.

    There is no health care ‘debate’. It’s all a fraud, and the lack of coverage of incidents like this one confirm that the proponents of Obama’s plan are conspiring to conceal the reasons no one will want this plan.

    Comment by Apogee — 8/15/2009 @ 11:37 pm

  2. Though I suspect that the Supreme Court would enjoy hearing this, and taking the Federal Govt down a few pegs.

    I think this is one of the few things both Justice Scalia and Justice Sotamayor would agree about.

    Comment by Scott Jacobs — 8/16/2009 @ 2:18 am

  3. I don’t see the Supremes undoing the Feres Doctrine. That’s Congress’s job.

    Comment by Xrlq — 8/16/2009 @ 5:23 am

  4. Then again, Justice Scalia did suggest in U.S. v. Johnson that he thought Feres was wrongly decided, so who knows. Nevertheless, given how long Congress has had to fix the Feres doctrine if they disagreed with it, I think it would make much more sense for Congress to be the one to act now. If memory serves, the relevant statute (Federal Torts Claims Act) was indeed amended in 1988, not to restrict sovereign immunity but to effectively expand it, i.e., to undo Westfall v. Erwin, which would have held federal government employees personally liable for most of the torts they commit in the scope of their employment.

    Comment by Xrlq — 8/16/2009 @ 5:36 am

  5. “That’s strange, Kevin, I haven’t heard this story on the network news or in the papers.”

    Besides here, how many “conservative” news sources have reported or commented on this?

    I am a conservative. I am a lawyer who does NOT earn money from personal injury/malpractice cases. I am against tort reform, except to the extent that we go the other way and undo Feres and restrict immunity of government employees.

    Comment by Ira — 8/16/2009 @ 6:28 am

  6. BTW, “a law enacted in 1950″ is a strange way to describe a Supreme Court decision.

    Comment by Xrlq — 8/16/2009 @ 7:05 am

  7. […] Read learns the hard way that American Revolution notwithstanding, the king can still do no wrong. Comments […]

    Pingback by damnum absque injuria » They’ve Got His Gall — 8/16/2009 @ 7:06 am

  8. Can’t he go through the Court of Claims? And if there ever was a case for a private bill from his Senator or Congressman ….

    Comment by nk — 8/16/2009 @ 7:33 am

  9. I note that searches of the New York Times and the LA Times resulted in zero hits on “Colton Read.” ABC News web site had it, though. Google Colton Read

    Comment by Kevin Murphy — 8/16/2009 @ 9:51 am

  10. Wonder if a jury would be reluctant to convict a guy with a bad gall bladder and no legs, and a gun. Bet the doctor wouldn’t be immune to a bullet.

    Comment by Walt — 8/16/2009 @ 10:01 am

  11. Walt, it might puncture the Doctor’s arrogance.

    Comment by PCD — 8/16/2009 @ 3:59 pm

  12. My family has its own military medicine horror stories, but I’ll relate them another time.

    If we had single-payer, you’d wind up with sovereign immunity protecting the single-payer from lawsuits, since the government would simply choose not to allow the suit. Whether doctors would be covered, as employees of the government, I don’t know.

    I assume that the Air Force will do right by the airman, because it’ll only take an angry congressman to get that settled. But the reason the media are staying clear of this story is that it hurts the meme that the government will take care of you.

    Comment by The appalled Dana — 8/16/2009 @ 4:31 pm

  13. Walt and PCD, leave that bullshit for Radley Balko’s fans. The soldier does not need revenge — he needs compensation. Compensation for the health and life that was taken away from him. So he can live the life God gave him. I dunno whether the Court of Claims has jurisdiction over this but it would not be a tort suit so it might. And his Senator or Congressman can get him a settlement just by dropping a piece of paper in a basket by the Speaker’s or Senate President’s desk.

    Comment by nk — 8/16/2009 @ 4:54 pm

  14. My family has its own military medicine horror stories, but I’ll relate them another time.

    I certainly hope that they don’t involve my future wife. 😉

    Comment by Scott Jacobs — 8/16/2009 @ 8:32 pm

  15. Walt and PCD, leave that bullshit for Radley Balko’s fans. The soldier does not need revenge — he needs compensation

    Though didn’t they used to shoot people who were guilty of dereliction of duty? If this doc doesn’t see an Article 32 hearing and then get held over and tried, ending up with at least a decade in Leavenworth, and a lovely dishonorable discharge, I might become disillusioned with regards to The System…

    Comment by Scott Jacobs — 8/16/2009 @ 8:36 pm

  16. Appalled Dana:

    Single payer does not make the doctors employees of the government. While this might be the end result (and I oppose the healthcare bill), my understanding is that the government becomes a universal insurer, rather than a universal medical employer.

    Thus, the current bill would *not* lead to medical malpractice immunity. Again, where we end up is a different place. And cost controls of some sort are certain.

    The feds should pay the guy who got hurt, anyway. And fire Dr. Nick.

    –JRM

    Comment by JRM — 8/16/2009 @ 9:36 pm

  17. i foresee a medical board and a lifetime VA claim in this Airman’s future, unless the AF decides to keep him in an AFSC he can perform with an artificial leg.

    Comment by redc1c4 — 8/17/2009 @ 12:03 pm

  18. ps: i second the Art 32 and a General CM for the quack. i’d also like to know what state s/he is licensed in, so that could be yanked too.

    and i too have military medical horror stories….as i tell folxs: having survived government health care previously, i’ll pass on it now.

    Comment by redc1c4 — 8/17/2009 @ 12:05 pm

  19. Technically, I don’t think he has to be licensed in a state, if he only operates in military facilities, but I could easily be wrong.

    Also, I still think you’re a big jerk, red. :)

    Comment by Scott Jacobs — 8/17/2009 @ 1:08 pm

  20. http://www.goarmy.com/amedd/special_two_year_promo.jsp

    Have completed all educational/specialty licensing and certification requirements in the specific medical field in which the individual seeks appointment as prescribed by the Army Surgeon General and applicable law, regulation and policy

    and
    http://www.navy.com/careers/healthcare/physicians/#specific-requirements
    # Be a graduate of an eligible medical school accredited by the AMA or the AOA

    # Have completed one year of graduate school in a program approved by the AMA or AOA (interns currently in training may also apply)

    # Have a current state medical license within one year of entering the Navy Medical Corps

    didn’t bother looking up the air farce, but it’s doubtful their standards wouldn’t match, since i believe DOD sets them.

    PS: you’re a big poo-poo head…. %-)

    Comment by redc1c4 — 8/17/2009 @ 8:32 pm

  21. The military was exempted from tort claims in these cases because there were already two different types of relief available. The injury is “line of duty/service connected” and compensatable under either military disability retirement or veteran’s service-connectd compensation. This is simular to the various federal and state laws regarding Workman’s Compensation. It is helpful to know the facts before one opines.

    Comment by Longwalker — 8/18/2009 @ 2:50 am

  22. When I was stationed at Ft Sill, soldiers in my brigade lost at least one baby a year to the awful Ft Sill hospital. At the time, the sentiment was universally that the care was deficient. I’m sure to some extent normal human frailty was really at fault, but my single attempt to get health care from the military convinced me that there was some truth to the horrible accusation that my free health care was worthless. It wasn’t really free, of course.

    I got married while stationed at Ft Sill, and my wife was pretty irritated when prescribed motrin for a serious problem that she had to go to a private practitioner to finally resolve. Taking my wife to the Army for delivering a child was out of the question, and this entered into the calculus when I left the service to go to school.

    Soldiers are willing to make tremendous sacrifices, but it’s a lot harder to make your wife and kids go through sacrifices just to save Uncle Sam some cash.

    Comment by Juan — 8/18/2009 @ 8:19 am

  23. Longwalker, I’m going to call bullshit on your ridiculous notion that the soldier is entitled to relief. He should be receiving many millions of dollars for this tremendous loss. He won’t.

    The doctor should be in prison. That might happen, but only because this story got some publicity. Military doctors seem to make a lot of mistakes, if what I’ve heard is true. They cover most of them up, just as this doctor attempted to.

    Fact is, this soldier will not receive anything like what I would receive if my doctor did this to me. And there is no good reason for that. In a combat zone, if a medic screws up, that’s extremely forgivable. That isn’t anything like what happened, and these protections should reflect reality. This doctor knew he screwed up and failed to help his patient.

    Comment by Juan — 8/18/2009 @ 8:23 am

  24. Juan : The truth is often ridiculous to the uninformed. As a registered represenative of the American Legion, the Veterans of Foreign Wars and New York State, I worked for veterans and/or their dependents for fourteen years. As an attorney, I also have experience with Social Security Disability and Worker’s Compensation cases. If you have to take these cases through the court system, it will take longer and be more expensive. Remember, the tort lawyer get about 1/3 of the settlement plus expenses. Although this case seems to be a “horror story,” I suspect that there is another side. Both doctors and lawyers practice. That means that, under the best circumstances, their work is imperfect. BTW, Juan, you do realize who will pay the bill for the doctor’s negligence?

    Comment by Longwalker — 8/18/2009 @ 10:17 am

  25. Longwalker, it’s the American taxpayer this soldier risks his life to defend. They and all American citizens are the beneficiaries of this soldier’s bravery. Is that who you are referring to as who would pay the bill? I think that’s justice.

    Regardless, I think you’re missing the real point: whether or not this really happened, it’s a valid argument against government run health care combined with sovereign immunities. (of course, this really did happen and is even worse than the valid hypo it represents).

    You suspect another side to the story… I heard about this quite a while ago… the pentagon has a press office… and I can’t conceive of a side to this story that explains this situation away. Very realistic circumstance, and the story is pretty old, and the people with the best capacity to speak out are the ones that would provide the ‘other side to the story’.

    Health care in garrison should be as good as any civilian health care. That’s what our troops deserve. It’s a professional military that should get full benefits. I know my recruiter didn’t promise jars of motrin.

    You think we’re uninformed because you are aware of some paltry and pathetic excuse for compensation. No… we knew about that. This soldier should have a right to sue. That way, the mythical other side to the story can come out in from of a jury. Whatever remedy the government gives up can be taken into account with the rest of the evidence. All I’m asking for is a fair appraisal that is equivalent to what I’d get as a civilian suing a private doctor.

    I’m not trying to flame you. I think there’s a critical case to be made for limiting the ability of soldier to sue the government. But it should be crafted very carefully to target what we’re really concerned with (battlefields and training). People looking at this case and wondering what immunities the government will give itself when Obamacare comes are not uninformed.

    Comment by Juan — 8/18/2009 @ 11:28 am

  26. One other point: the point of being able to sue is to prevent this from happening again.

    I can say first hand, and I know very few soldiers who wouldn’t agree, that dentists and doctors in garrison are not as concerned with results as private doctors are. They are not as scared of screwing up or missing a diagnosis. Part of that is because of malingering PFCs trying to get out of PT, I suppose (I never went on sick call, but that’s my impression of it). that problem will be repeated in private practices soon when Obamacare comes. That’s what the core argument is. How are we going to have great care when the system is flooded with idiots? One option is to give the doctors immunity and a bad attitude.

    Comment by Juan — 8/18/2009 @ 11:33 am

  27. I suppose that Longwalker would also agree that Worker’s comp/disability would be enough to compensate him(?) if some doctor cut off his legs due to a mistake.

    Comment by Kevin Murphy — 8/18/2009 @ 1:26 pm

  28. Well, I probably was too hard on him, to be honest. No one wants lawyers running the battlefield any more than they already are. There’s something about the military that requires a completely different system than civilians have. A Sergeant yell ‘GO DO THAT’, and the soldier should just do it instead of whining about his stress card.

    He sounds like someone who supports the troops and doesn’t want to destroy the fabric of the military by letting soldiers sue their platoon sergeants and battalion commanders. Perhaps I’m misreading him. I think there’s a good middle ground, though.

    Comment by Juan — 8/18/2009 @ 3:14 pm

  29. If I suffer an injury, I expect that my loss be made good. I am service-connected disabled (10%)for hearing. I would rather have my hearing back than the money. In the case at hand, the soldier cannot get his legs back and should be compensated for his loss. Go look at the Veteran’s Administration and Army Disability Retirement compensation and pension tables. If you do not consider them sufficient recompense for this soldier, how about those others who also lost both legs. The fact that, in this case, the loss may have been caused by a doctor’s negligence rather than enemy action is not a controlling factor. The doctor may have been negligent or he might have misread the patient’s status. Perfect diagnoses are rare and some conditions are deceptive. Negligence or an honest mistake? I don’t know and neither does anyone else commenting. It was to avoid long drawn out court battles that the compensation programs were instituted. This soldier, as well as many others, can never be “made whole” but their living standard should be maintained.

    Comment by Longwalker — 8/18/2009 @ 4:40 pm

  30. I do agree that the proper outcome would be his Congressman putting up a private bill for a reasonable settlement.

    Yes, the military is different, but if this had been his wife or child the result would have been the same WITHOUT any pension or disability payment.

    Comment by Kevin Murphy — 8/18/2009 @ 7:20 pm

  31. Juan, I want lawyers running on the battlefield, as legitimate targets FOR BOTH SIDES!

    Comment by PCD — 8/19/2009 @ 5:10 am

  32. PCD, the reason you feel comfortable driving through an intersection on a green light is lawyers. And the same reason you go to sleep confident that there won’t be another family living in your house when you wake up. You’re an intelligent person and I’m sure you can think of a thousand more examples where it’s the law that protects you and not your arms. Or your arms.

    Comment by nk — 8/19/2009 @ 5:56 am

  33. longwalker, I was in the artillery, and I als have some hearing loss. I refused to get the disability because I wanted to be eligible to go back in. Which was hilariously stupid of me.

    PCD, nk has a point. “The first thing we do, let’s kill all the lawyers.” means “Without lawyers Jack Cade can pillage and plunder the innocent with impunity”.

    Lawyers often suck, but we really need them. Our founding fathers and our valued rights didn’t come from med school. not to be a prissy lecturer, and I think letting soldiers sue their Captains would be a problem.

    Comment by Juan — 8/19/2009 @ 8:04 am

  34. a reasonable settlement.

    The offending doctor should thank Christ that I’m not airman’s Rep or Senator, as I would only consider it a “reasonable settlement if it included the good doctor’s head upon a pike.

    Comment by Scott Jacobs — 8/19/2009 @ 8:15 am

  35. Juan : A cannon cocker! I should have known. Leg infantry (trained in both light & heavy weapons). Check with your nearest American Legion or Veterans of Foreign Wars Post to be put in contact with a Service Officer/Registered Representative to advise and assist you if you have not already put in a claim for service connection on your hearing loss. My cousin, who used to jump from perfectly good planes in the late 1950’s, ignored my repeated efforts to file his claim until he was in his late 50’s. No matter, he took my advice and sought the asistance of a Service Officer/Registered Represenative from a veteran’s organization. Th VA investigated and awarded him Service Connection on his hearing loss and furnished him with hearing aids for both ears. Also, you should have checked with any recruiter. They would have told you that being in reeipt of a service connected disability does not make a veteran ineligible for further military service. Your assumptions were wrong and you failed to reseach the situation. That is why you should get into the habit of checking things out with informed people.

    Comment by Longwalker — 8/19/2009 @ 9:32 am

  36. “They would have told you that being in reeipt of a service connected disability does not make a veteran ineligible for further military service”

    Well, if that’s the case I indeed failed to get the right answer. I was relying on an Army doctor who diagnosed my hearing loss. I guess that was a mistake. Thanks for the info!

    Comment by Juan — 8/19/2009 @ 12:48 pm

  37. I work with a lot of veterans, and they all agree that if I were drawing some sort of VA disability, it would prevent reenlistment unless there was a very good reason.

    Longwalker, I’m sure there’s a waiver for everything, but I also think I’ve been right all these years that VA disabilities generally prevent reenlistment. Can you point me in the direction of whatever reg you were relying on when you corrected me? I’m pretty interested in the topic.

    Comment by Juan — 8/19/2009 @ 12:59 pm

  38. Juan : I served from 1956 to 1965 and was a veterans counselor from 1973 to 1987. While I was on active duty, I served with several individuals who had been adjudicated as service-connected disabled. They passed the physical to return to active duty. It must be noted that we now have many amputees and, in one case, a blind Special Forces officer on active duty. The stories of the many amputees and the blind Special Forces officer may be found through Google. What your friends may be confused about is that, if you go back on active duty, the VA stops paying the service-connected compensation for as long as you remain on active duty.

    Comment by Longwalker — 8/19/2009 @ 3:27 pm

  39. Kevin, is there any particular reason why the doctor can’t be charged with attempted second-degree murder?

    He damaged the guy’s aorta. Then he failed to notify anyone or fix it. That’s clearly an act which is potentially hazardous to human life, and I think he’s reckless, not negligent … this won’t help the guy get his legs back, but it’s a way the doctor could be punished.

    Comment by aphrael — 8/26/2009 @ 10:46 am

  40. Is there a federal murder statute? Because he is immune to state prosecution.

    In any case, attempted murder is a specific intent crime. I don’t think that I could prove intent to kill.

    How’s it going in law school, anyway, Aphrael? Have you gotten it yet that it’s not what you know, and not what you think, it’s what your professors think you should know and what they think you should think?

    Comment by nk — 8/26/2009 @ 12:01 pm

  41. NK – I’m unconvinced that you’d need intent to kill; since you can get 2d degree murder in California with intent to commit an act with a high probability of causing death, I think there’s an argument: while the injury wasn’t intentional, the failure to report was, and the failure to report is an act with an objectively high probability of death.

    That said, if he’s immune to state prosecution on other grounds, then he’s immune.

    ———-

    Law school is going well. I’m going into year 3 of the part-time program. GPA remains in the top 10%; I’ve gotten the highest grade in my classes (which fact the school, to my great irritation, publishes) that my classmates all think I’m smarter than I am; and I’m finally getting to take something other than required classes, which is nice. :)

    That said, I’m entering into a class with a prof (former Justice Douglas clerk) who is the most Marxist professor I’ve ever had – except that, because he’s a law professor and neither a historian, an economist, or a political theorists, his grasp of Marxist economic and political theory is somewhat … superficial (my undergrad degree was in political science with a focus on the politics of transitional post-communist states; Marxist theory is something I’ve done a fair amount of reading on, because you can’t understand the post-communist revolutions without understanding the political cultures of the states in which the revolutions took place). I think it will make for an amusing semester.

    Comment by aphrael — 8/26/2009 @ 12:44 pm

  42. I think it will make for an amusing semester.

    Repeat after me: Proving the teacher wrong or showing that class that he has no idea what he’s talking about can have unfortunate consequences when it comes to my final grade.”

    Comment by Scott Jacobs — 8/26/2009 @ 12:50 pm

  43. Scott, even if that weren’t true … the things I’m reacting to are side issues, irrelevant to the core material of the class. To interrupt the class to call him out on them would be jack***ery … because it would waste class time on irrelevant issues that the rest of the class probably isn’t that interested in.

    I was that guy in high school. I don’t need to be that guy now. :)

    Comment by aphrael — 8/26/2009 @ 2:37 pm

  44. As I indicated in my lead-in, I think the doctor’s actions may have been criminal if the delay was due to his actions. It is possible the delay was bureaucratic panic instead.

    Comment by Kevin Murphy — 8/26/2009 @ 4:56 pm

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