COURT RULING IS MILITARY'S BEST DEFENSE \ BUT BAN ON LAWSUITS,
EVEN IN ATROCITIES, IS UNDER ATTACK
Published: November 10, 1991
Section: FRONT, page A1
Source: Phyllis W. Jordan, Staff writer
© 1991- Landmark Communications Inc.
Staff Sgt. William Barrett checked into an Air Force hospital with a dog
bite on his hand.
Before he left, doctors had cut off his arm at the elbow, removed two of
his ribs and started him on a debilitating course of chemotherapy.
Doctors diagnosed a lump growing near the bite as cancer. But
pathologists at the Air Force's top laboratory said it was more likely a
traumatic reaction to a recent injury. Like a dog bite.
Barrett's case should have malpractice lawyers salivating. But Barrett
can't sue for what the doctors did to him in that Texas hospital six years
ago. A 1950 Supreme Court ruling, called the Feres Doctrine, forbids
active-duty military from suing the armed forces for anything that
happens on duty.
``I knew of the Feres Doctrine,'' said Barrett, 39, now retired from his job
as an Air Force carpenter and living in Goldsboro, N.C. ``I pretty much
knew that they got away with cutting off my hand.''
That legal ruling has blocked military men and women exposed to
deadly radiation or fed LSD experimentally from winning vindication in
court. And it could keep the families of 47 sailors killed on the battleship
Iowa from ever arguing their $2 billion lawsuit.
``We're hoping for the chance just to get into court,'' said Kathy
Kubicina, whose brother was initially accused of causing the Iowa
explosion. ``We just thought as the families who signed up for this
lawsuit that it was time to stand up to the Feres Doctrine.''
Only in rare exceptions, such as the space shuttle Challenger explosion,
do families receive any additional compensation.
The doctrine, a court ruling never written into law, now faces a twopronged attack: Lawmakers are pushing a bill in Congress that would
allow suits for medical malpractice at military hospitals. Also, lawyers
and military advocate groups are looking for the right case to persuade
the Supreme Court to change the Feres ruling.
``We are going to push to get a test case,'' said Norman Beebe, who
heads the Feres Project Foundation, a Mississippi-based group
dedicated to overturning the doctrine. ``The opportunity for the full court
to come back and revisit Feres is better than it has been for 40 years.''
The courtroom strategy suffered a setback Monday, when the Supreme
Court refused to hear the case of a Navy swimmer who died during
training. His instructor was convicted in a court-martial of negligent
homicide, but his family still cannot collect damages.
``It's just another in the long line of cases,'' said Russell H. Putnam, a
Columbia, S.C., lawyer who has aggressively pressed Feres cases in
court. ``I think probably what's going to have to happen is that the
daughter or son of the chief justice is going to have to be a victim of
gross medical malpractice before anything changes.''
The legislation, submitted for the third time in six years, is also facing a
tough challenge. Twice it has cleared the House, only to be stopped in
the Senate.
``The theory is that military service is inherently dangerous,'' said Sen.
John W. Warner, R-Va., who has consistently opposed the measure.
Warner, the senior Republican on the Armed Services Committee,
argued that the military makes up for its ban on legal action by providing
free medical care and then lifelong disability compensation to anyone
permanently injured while on duty. ``The claimant doesn't even have to
prove negligence,'' Warner said.
Indeed, the military compensates William Barrett for his loss - $1,800 a
month from the Veterans Administration for himself and the two children
living with him. That's about $21,600 a year - which, combined with his
wife's salary, is enough to keep them in their small, white house in
Goldsboro.
But Barrett believes he deserves more. His encounter with military
medicine six years ago essentially ended his career in carpentry.
``It's virtually impossible to be a carpenter with one hand,'' said Barrett,
39. ``You can hold up something for somebody. But you can't hold up a
nail and hit it with a hammer.''
He sought an investigation of the doctors' conduct, only to find that
federal law forbade him from even seeing a copy of the investigation
report. He tried to sue - filing a handwritten complaint in the painful
scrawl of his weak left hand - only to have the case thrown out of court
last spring.
``You see them getting away with it,'' Barrett said, shaking his head
slowly. ``There's nothing that can be done about it because every
avenue belongs to the government.''
-------It started with a barracks fire that killed a soldier named Feres.
His family tried to sue the Army, but the Supreme Court ruled in 1950
that service members cannot collect damages for injuries or deaths that
occur ``in the course of activity incident to service.''
That argument has survived four decades of lawsuits that stretch the
boundaries of what is considered military service: from the soldiers who
develop cancer from atomic bomb tests to women rendered sterile in
deliveryroom blunders.
In some high-profile cases, such as the Challenger explosion, the
government settled with the families. In other cases, such as the
radiation victims, Congress set up a fund to compensate them.
Individuals may petition Congress for additional compensation.
But mostly, the Feres Doctrine has left angry veterans and families in its
wake. The operating room injuries stir the most anger.
``The Feres bar makes a lot of sense in situations other than medical
malpractice,'' said Michael Curreri, a Richmond lawyer who served a
tour as the Navy's attorney for Bethesda Naval Hospital. ``You should
not be able to sue your Marine Corps lieutenant for negligently saying,
`Let's go take that hill.' You don't want him to have to check with his
lawyer first.''
This concern for military order and discipline - as well as the
compensation provided for injured service members - serves as the
Supreme Court's, and the Defense Department's, rationale.
Defense Department lawyers say that even malpractice suits would
undermine military discipline, because of the inequities created. For
instance, a service member who loses a leg through a doctor's blunder
could sue for damages, but the one who steps on a mine could not.
``Such a law would in fact erode the uniform treatment of service
members vital to the maintenance of good order and discipline as it
would create a special class of litigants favored over all others,''
Terrence O'Donnell, the Defense Department's general counsel, said at
a hearing last month.
But foes of the Feres Doctrine say the ruling creates much graver
inequities.
Consider the case of Dawn Lambert, a 19-year-old sailor who came to
Portsmouth Naval Hospital with a tubal pregnancy in 1982. The
pregnancy cost her one of her fallopian tubes. Subsequent
complications - including an infection caused when doctors left three
sponges and an X-ray shield inside her - cost her the second tube,
making it impossible for her to conceive naturally.
For her disability, the Veterans Administration awarded her $66 a
month. A woman rendered sterile at a civilian hospital in Washington
recently won a $3.4 million award.
Or consider the case of Martin Gaffney, a Marine Corps warrant officer
who died recently of AIDS. Gaffney contracted the disease after a Navy
hospital in California botched his wife's pregnancy and gave her a
tainted blood transfusion.
He could not sue the hospital after he contracted the illness. But he
could sue on behalf of his wife and son, who both died of AIDS. Just a
week before he died, the government agreed not to appeal a $3.8
million judgment and allowed Gaffney to collect before his death.
``These people are protecting us, and they're not being treated fairly,''
said Peggy Friend of Richmond, whose son died of a heat-related
illness while in Navy training. ``The Constitution gives them rights, and
the military is taking them away.''
Friend learned she could not sue only after her son's death, which she
believes could have been prevented with proper medical treatment.
``I had never heard of the Feres Doctrine until my son died, and I vowed
that I would fight it till my dying day,'' said Friend, who heads the
Virginia chapter of Concerned Americans for Military Improvements, or
CAMI.
The group is active in pushing for legislation in Congress. For the past
three congressional sessions, Rep. Barney Frank, D-Mass., has
submitted a bill that would allow lawsuits on only a sliver of military
injuries - medical malpractice.
The legislation now rests with a House subcommittee and is expected to
come up for a vote early next year.
There is no way to tell how many service members would file
malpractice suits if the ban were lifted. But military dependents and
retirees - who are allowed to sue - consistently file between 900 to
1,000 claims annually, according to Defense Department statistics.
Between 1984 and 1988, the government paid about $60 million a year
in malpractice settlements to dependents and retirees.
``It's really not about honor; it's really not about what we owe our
military. ,'' said Putnam, the lawyer from Columbia, S.C. ``It's really
about money. That's the bottom line. The federal government has
managed to avoid its responsibility for a long time.''
William Barrett, the carpenter whose hand was amputated, knew he
would never get the Air Force to pay for what its doctors did to him on
active duty.
Still, he sued the government for the treatment he received after the
amputation and after he had been moved to the temporary retired list.
That ``treatment'' included chemotherapy and the removal of two ribs
that doctors erroneously believed were infected with cancer.
Even after he decided to sue, Barrett could not find a lawyer who would
take his case to court. So, in his own left-handed scrawl, he laid out ``a
detailed complaint of medical malpractice, fraud, malicious mayhem,
conspiracy and civil rights violations.''
He began with the dog bite. About two months after the bite had healed,
he felt some residual pain in his hand. Air Force doctors in Florida gave
him painkillers at first but eventually sent him to Wilford Hall Medical
Center in San Antonio, Texas, for surgery.
He told the doctors about the dog bite, but they believed he had a rare,
rapidly spreading bone tumor called osteogenic sarcoma, according to
medical records. Doctors told him they were going to schedule him for
minor surgery to remove the growth.
Just before Barrett underwent the operation, doctors told him one more
thing: They might have to amputate his forearm.
``The next time I awakened,'' he said, ``I felt the vibrations and heard
the sound of an air saw, and they were cutting my hand off. All you
could feel was the vibrating. You knew they had reached the bone,
because I could feel the dull vibrating.''
At the request of The Virginian-Pilot and The Ledger-Star, Leo Ladaga,
a pathologist for 30 years at Sentara Norfolk General Hospital, reviewed
Barrett's medical records.
As he read the records Thursday, Ladaga shook his head and muttered,
``No, no, no.''
``Amputate that day? There's no need for that,'' he said. ``. . . I've got to
be 100 percent sure with osteogenic sarcoma.''
The Air Force doctors had relied on a pathologist's quick review of a
frozen sample of the growth and subsequent conclusion that the lump
on Barrett's hand was ``consistent with'' a cancerous tumor.
Ladaga said the tumor is one of the hardest to diagnose and looks a
great deal like a non-cancerous condition, called myositis ossificans.
When the Air Force later consulted two leading pathologists in bone
tumors about Barrett's case, those pathologists judged Barrett's
condition to be non-cancerous.
``It's a tough call, but the clinical history is extremely important,'' Ladaga
said.
The cancerous tumor usually occurs in people age 10 to 20. Barrett was
33. The cancer usually occurs on a long bone. Barrett's growth was
near his index finger. The cancer rarely occurs after an injury. Myositis
ossificans is, in fact, a reaction to trauma - such as a dog bite.
The Air Force doctors also saw what they thought was a tumor on
Barrett's rib. So they removed that rib in another operation. Later, they
discovered they had removed the wrong rib and performed the surgery
again, say Barrett's medical records.
Subsequently, samples of Barrett's two ribs were subjected to more
tests for cancer. The conclusion: no sign of cancer in either rib.
Despite the negative tests, the doctors began feeding Barrett strong
doses of chemotherapy for months.
Barrett's growing suspicions about the course of treatment turned to
alarm when the Veterans Administration asked for medical records to
support his disability claims. The hospital said the records were lost.
Only after months of wrangling did Barrett finally see his records and the
expert opinion that he never had cancer.
The Air Force, after an investigation, assured Barrett that the reports
proved only that ``several highly respected, well-qualified doctors
disagree'' on whether he actually had cancer.
His military cancer doctor, J. William Myers, acknowledged in a medical
report that ``there is the distinct possibility'' Barrett never had a
malignant disease. ``It was felt, however, by the physicians involved, to
err on the side of the worst possible diagnosis and treat the patient
accordingly,'' Myers concluded in his report.
Rereading that paragraph, Barrett stared blankly at it.
``It really weighs on me,'' he said. ``Maybe some day I can swallow this.
But to see this and to live this and knowing that I was serving in the
defense of everybody here. . . .''
As his voice trailed off, Barrett just shook his head.