Prisoners can sue but soldiers can’t

Unless you are a member of the military and a victim of medical malpractice, you probably never heard of the Feres Doctrine.  Almost 60 years ago, U.S. Supreme Court Justice Robert H. Jackson delivered yet another of his unconscionable opinions that haunts America to this very day.  By 1950, Justice Jackson was probably best known for his ignominious 1942 opinion in Wickard v. Filburn, in which a dirt farmer was held to have violated the convoluted Depression-era Agricultural Adjustment Act when he engaged in “interstate commerce,” by growing a small amount of wheat on his own farm for his own consumption.  Feres was an equally egregious opinion that bars active duty military from suing the military for negligence.  Feres actually consisted of three consolidated lower court cases, including a stunning medical malpractice case.  That poor soldier had been operated on twice: the second operation removed a 30 by 18 inch towel, marked “Medical Department U.S. Army,” that had been left behind eight months previously!  Justice Jackson’s decision in Feres gives the absurd result that a federal prisoner can sue the government for medical malpractice committed by a prison doctor, but an active duty soldier has to suck it up.

Enter Alexis Witt.  Her then 25-year-old husband, staff sergeant Dean Witt, developed a simple case of appendicitis.   He entered David Grant Medical Center, the Air Force’s biggest hospital on the West Coast.  Even military investigators describe what happened next as “avoidable error.”  Post-operatively, Dean stopped breathing, but hospital staff tried to revive him with a respirator designed for children.

When the pediatric equipment didn’t work, a nurse anesthetist tried to intubate him, but she fed the tube into his esophagus.  Oxygen was pumped into Dean’s stomach instead of his lungs. Dean wound up brain dead and Alexis had him disconnected from life support.  The California Nursing Board accused the nurse anesthetist of “gross negligence” over Dean’s death and a similar wrongful death  she was involved in a year earlier.

The United States District Court for Eastern California threw Alexis out of Court and she appealed to the United States Court of Appeals for the Ninth Circuit.  Just recently, the Ninth Circuit tossed her as well.  The only hope for Alexis now is that the Supreme Court will accept this case on writ of certiorari.  Maybe the Supreme Court will finally overturn Feres and give Alexis some justice.

Glenn L. Goodhart, M.D., J.D.                                     

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Article first published as Prisoners Can Sue But Soldiers Can’t on Technorati.