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Military Family Can't Sue Over Major Medical Malpractice

Posted by Jane Akre
Friday, February 01, 2008 11:50 AM EST
Category: Major Medical, Protecting Your Family
Tags: Medical Malpractice, Wrongful Death

Military families cannot sue for medical malpractice under a Supreme Court ruling.

Image: Sgt. Carmelo Rodriguez, Courtesy CBS

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This CBS News story is absolutely heartbreaking.

Sgt. Carmelo Rodriguez  wanted to do an interview with CBS, so newsman Byron Pitts arrived at the family home.  What he saw was shocking. 

A once vibrant, muscular, life- loving Marine, father, son, part-time actor and artist, whittled down to 80 pounds.

Pitts saw 29-year-old Rodriguez gasp his last breath. Rodriguez died just before the interview.

In this CBS news story, (video available here) *(Warning- very graphic image), the family breaks out in grief all on camera. They tell Pitts they want him to stay. But the story goes beyond the obvious tragic loss of a good family man.

It turns out the military had diagnosed melanoma in 1997 but, according to Rodriguez's uncle they never told Rodriguez and never told him to "follow up" on it.  Instead the military called it a “wart” and only when it developed into stage 4 melanoma was it accurately diagnosed, 18 months ago.

“Don’t let this be it. Fight!” Rodriguez told his family before he died. But the family cannot fight the brick wall of military immunity.   

In 1950, the Supreme Court ruled the Feres Doctrine can bar military personnel from suing over medical malpractice.  Military personnel and their families lose the rights that U.S. civilians have, even though they have been fighting for America in a foreign land.

In 1997, when Rodriguez enlisted, during an initial military checkup the doctor documented that he had melanoma. Rodriguez's uncle states that the doctor never told the Sgt. and never told Rodriguez to follow up on it.  CBS looked at the military medical report where the doctor calls the skin “abnormal” and “melanoma on the right buttocks.”  There is no recommendation for further treatment.

The “wart" continued to grow as Sgt. Rodriguez is in Iraq. A military doctor finally advises he have someone look at it when he returns to the states in five months.

"If a birthmark is about that big [she holds up two hands], and … it has a raise like that and is pussing, just let it go and say it's a wart?" his sister, Elizabeth, said to CBS. "Who does that; how does that happen? It's not right. It's not right."

Sgt Rodriguez said he didn’t want others to go through what he did, but military insiders tell CBS that they are not surprised because it happens in hundreds of cases across the country, says a veterans group.  

25-year-old Air Force Staff Sgt. Dean Patrick Witt’s appendicitis was misdiagnosed. He ended up brain dead after emergency surgery and later died.    

The Feres Doctrine recently prevented a Navy widow from suing the military.  

But some exceptions have been noted recently. A three judge panel in Florida allowed a military lawsuit to proceed on behalf of three Army servicemen killed in a plane operated by a Blackwater subsidiary. Other exceptions to Feres have been pursued by a claim filed under the Federal Tort Claims Act.

CBS asked the military to find the doctor responsible for the Rodriguez case but the military would not make him available.

Military law expert Eugene Fidell, who is an attorney, says he gets calls regularly and tells people they can bring a lawsuit, but it is a waste of time, even though a military nurse calls the Rodriguez case “a major screw-up.”  

"George Washington said that when a person puts on the uniform, he does not cede being a citizen," Eugene Fidell said.

Sgt. Rodriguez would still be alive today if he had been told he had melanoma in 1997, his family says. A military email reads: “He should have been immediately seen and the wart removed and we may not have gotten to where we are now.”

Since the Sgt. was forced into early retirement due to his illness and was no longer on active duty, the family had to pay for his military funeral.

His seven-year-old son, Carmelo Rodriguez IV, will receive 55 percent of his military benefits.  #

 


5 Comments

Anonymous User
Posted by Marisol
Friday, February 01, 2008 1:36 PM EST

How does this happen to our soliders? These are strong, devoted individuals who are out there fighting for our country and this is how they are treated? Come on, something has to be done! This Feres Doctrine crap needs to be abolished.

Anonymous User
Posted by Rich Azure
Friday, February 01, 2008 5:08 PM EST

My future son-in-law is an Iraq veteran now in the Reserves. He was diagnosed with skin cancer while in Iraq and it is possible that those environmental conditions precipitated his condition.
I saw the video of that soldier just 8 minutes before he died. I pray my daughter doesn't see it.
I am not a lawyer, but even I can see that the "Feres Doctrine" is fundamentally wrong. If it is constitutional according to the Supreme Court, then it must be changed by Congress as soon as possible.
Lastly, is there a veteran's group, a charitable organization, or a private individual who would step up and reimburse his surviving family for the funeral expenses?

Anonymous User
Posted by Henry Pierce
Tuesday, February 05, 2008 10:31 AM EST

As a veterans,
I wish that I could find words to inform all veterans
that your health should always, be your primary concern in a goverment service..The rules,laws and
restritions are many.that you "ONLY" learn of after
major screw-up.
Always get copy of the diagnosis and the Dr"s written
notes and all test.and keep them safe in your files ;is your best bet when dealing with the U.S Gov.I have been there...Pierce

Anonymous User
Posted by Amber haggerty
Wednesday, February 06, 2008 8:08 PM EST

As a student of the legal profession this appals me. To think that a member of our military was so severely mistreated after offering to give his life for our country. Although the Feres Doctrine is in place and having read the full text of it, I believe that exceptions must be made, this case makes me wonder, how many other soldiers were treated exactly the same way and lost their life because of it? To see pictures of a man who was so physically fit, and to see what he looked like when he died makes me want to fight for his cause, even though I never once met him or his family.

Anonymous User
Posted by Regina Blackman
Tuesday, February 12, 2008 10:00 AM EST

There are many others like Rodriguez. I know because my husband is one of them. His attending physician admitted to making several errors in some of the meetings we had when I filed complaints at Walter Reed Army Medical Center. But because of the bar of the Feres Doctrine, no one feels they have to be accountable. It is like- Oh well, we did not do our best, maybe we will do better next time. They also, tampered with the medical files and keep promising me I will receive a complete set, but I am still waiting. Everyone wants to holler loud and say we support the troops, but supporting them means 100%; not when they are just being sent over, but when they become ill as well.

Comments for this article are closed.

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