Supreme Court Declines to Hear Military Malpractice Case

July 6, 2011

On Monday, June 27th, the U.S. Supreme Court declined, without comment, to hear the California case Witt vs. U.S., that many activists thought was the best chance in decades to eliminate malpractice liability shields for military hospitals.

The case concerned Dean Patrick Witt, a twenty-five-year-old staff sergeant from the Air Force who died after a nurse in a military hospital inserted a breathing tube down the wrong part of his throat during an appendectomy, an operation generally considered to be “routine.”

A decision made by the Supreme Court in 1950, the Feres Doctrine, blocked Witt’s family from suing the hospital for compensation.

The effort to invalidate the Feres Doctrine has received significant support from veterans groups and active-duty military officers, seven of whom filed briefs in Witts case, in order to demonstrate the public’s interest in this legislation.

After the Supreme Court declined to hear the case, U.S. Representative Maurice Hinchey (D – New York) said that later this year he’ll reintroduce legislation to change the law, but he pointed out that it’s already survived more than a few legal challenges and congressional attempts to overturn it, so he’ll be fighting an uphill battle.

Two years ago, a similar bill that Hinchey co-sponsored, proposed in the name of a 29-year-old Iraq war veteran of the Marines who died of skin cancer that his family believes was misdiagnosed, saw some movement, but the Republicans on the Hill opposed the measure claiming it would open up the military to expensive lawsuits that would not service families, but would benefit trial attorneys.

If the law is changed, the federal government would be exposed to billions of dollars in liability claims, which makes it incredibly unlikely that this Congress, already facing sharp partisan divisions and hunting for ways to cut expenses, will pass any such legislation.

The official estimate from the Congressional Budget Office is that the government would have to pay out about $135 million a year in claims, more if the law was written to be retroactive. Hinchey maintains, however, that the cost would be less than that estimate, since his proposed law would mean a better level of care in military hospitals, resulting in fewer negligence claims. He pointed out that federal prisoners have more rights than members of the military and their families when it comes to seeking recompense for medical malpractice.

Speaking to the press about the case, Hinchey said, “It is disappointing that the Supreme Court has again failed to correct the mistake it made 61 years ago when it wrongly decided Feres.”

The Austin, TX-based attorney whose firm represented the Witt famly, Jamal Alsaffar, said that he and other activists had been hopeful that this case would lead to a change in the law. He believes that Hinchey’s proposal in Congress is the best hope now.

“We’re not going to give up the fight for these military families,” Alsaffar said to the press. “We’re going to do whatever we can do to right this wrong.”