From the Deckplates

By Senior Chief Jim Murphy, U.S. Navy (Retired)

Congress must eliminate this inequality to ensure those in the military receive the best care possible. A bipartisan effort to establish a reasonable alternative that provides limited protections to healthcare professionals is long overdue. This should not be difficult to support.

In a 28 June Supplements-Daily.com article, Feres Doctrine proponents argue that eliminating the policy would lead to expensive lawsuits and “ultimately benefit lawyers more than military families.” Although attorneys would benefit, military families would still receive well-deserved financial compensation, and settlements could be limited as they are in some states. Tennessee, for example, “has waived [its] immunity for professional malpractice and has created a board of claims” to determine settlements with a cap of $300,000 per individual and $1 million per incident, according to the website of McCullough, Campbell, and Lane LLP, a Chicago-based insurance law firm. Tennessee also has capped attorney fees in all malpractice claims at 33.3 percent of total damages.

According to the Supplements-Daily article, Representative Maurice Hinchey (D-NY) announced that he was “reintroducing legislation to abolish . . . the Feres Doctrine.” Every member of the House of Representatives should co-sponsor Mr. Hinchey’s legislation, the Carmelo Rodriguez Military Medical Accountability Act. The bill is named for a Marine Corps sergeant who died of skin cancer that was at first correctly diagnosed, although Sergeant Rodriguez was never told of the diagnosis, and later misdiagnosed. By the time it was correctly diagnosed a second time, it was too late for effective treatment.

Military members usually receive excellent care, but when the system maltreats them, they deserve the right to seek compensation. Even if military healthcare professionals already are held accountable through administrative procedures, they should be held to the same standards as their civilian peers. The benefits of practicing military medicine are many, but using Feres Doctrine protections as a tool to recruit doctors is insulting to patients. The physician-recruiting page on Navy.com lists “no malpractice insurance to buy” as one of the advantages Navy physicians enjoy over their civilian counterparts. Removing the immunity practitioners and facilities currently enjoy may even lead to better patient care.

There is only one obvious situation where existing doctrine makes sense, and that is combat-related activities. Doctors and other healthcare providers should be protected against lawsuits while practicing in combat, but even those protections should be limited if there is clear malpractice after evacuation from the combat zone. At that juncture, patients deserve the same level of care they would receive at any other time. Actually, they deserve even better.

Lawmakers talk a good game about supporting the military, but Congressman Hinchey’s proposal did not succeed in either the 110th or 111th Congress. Passing reasonable and responsible legislation to provide enhanced protection for military members and their families is logical. The 112th Congress needs to understand that support for our military includes protecting them against malpractice by providing penalties for careless healthcare professionals and compensation for victims and their families.

Our military members and their families make enough sacrifices. Denying them the ability to sue for malpractice should not be one of them. Congress should act swiftly to get rid of the Feres Doctrine.

Senior Chief Murphy transferred to the Fleet Reserve on 31 December 2008 after 21 years of active service. He served his entire career in the cryptologic community and was a qualified submariner.
 

Senior Chief Murphy will transfer to the fleet reserve on 31 December 2008 after more than 21 years of active duty.

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