Medical Malpractice In The Military Offers Limited Recovery

Last week, we wrote about the problems military families face when they become victims of medical malpractice. The Feres Doctrine bars legal claims against the U.S. government by members of the military and their families for injuries arising from military service. Unfortunately, the death of Lieutenant Rebekah Moani Daniel in childbirth was not an isolated incident. As more military families suffer as the result of malpractice, the chances may increase that the Supreme Court will reverse this injustice.

According to the Joint Commission, a nonprofit that accredits hospitals in the U.S. and around the world, there were 174 “sentinel events” at military treatment facilities in 2015 alone. The Joint Commission defines a sentinel event as, “an unexpected occurrence involving death or serious physical or psychological injury, or the risk thereof.”

The military defends their policy, in part, by claiming they have a benefit system in place to compensate military members or their families for medical mistake injuries. However, some victims say the benefits are not enough to provide adequate care and compensation. One case has been petitioned to go before the U.S. Supreme Court for a father whose daughter suffered a birth injury.

In Ortiz v. the United States, Jorge Ortiz is suing the government for injuries sustained by his daughter during birth. His wife, Captain Heather Ortiz, was admitted to the Evans Army Community Hospital to give birth to the couple’s daughter by Caesarean section. A nurse gave Captain Ortiz Zantac before surgery; however, her medical records clearly indicated that she was allergic to Zantac.

Captain Ortiz suffered an allergic reaction to the Zantac and was given Benadryl. However, the Benadryl caused a drop in her blood pressure, causing severe brain trauma to the child, resulting in cerebral palsy. Cerebral palsy can be caused by a number of factors, including lack of oxygen to the brain, or asphyxia. Low blood pressure of the mother before or during birth can damage tissue in the brain of the infant.

The child’s father filed a lawsuit seeking damages, including the cost of lifelong medical care for their daughter. A Tenth Circuit Court decision held that the government is not liable for negligence that resulted in the birth injuries to the child. The court found the Feres doctrine applied because the injury occurred “incident to military service,” despite the fact that the father was a civilian, and the injury occurred to an unborn baby, who was also a civilian.

“To be sure, the facts here exemplify the overbreadth (and unfairness) of the doctrine,” wrote Judge Timothy Tymkovich in the decision, “but Feres is not ours to overrule.” The Supreme Court petition is on hold for now, while the government decides whether or not they will settle the case.

If you or a loved one has been injured as the result of a medical mistake, Gilman & Bedigian team is ready to help. We are fully equipped to handle the complex process of filing a medical malpractice claim. Our staff, including a physician and attorneys with decades of medical malpractice litigation experience, will focus on getting you compensated, so you can focus on healing and moving forward.