Service members have little recourse against malpractice

When Cindy Wilson became pregnant with her first child, she shared the joys of approaching motherhood with her mother.

In long phone calls from Langley Air Force Base, where she was stationed, the 37-year-old technical sergeant exuded happiness. She sent a copy of the ultrasound photo and wondered aloud what her baby would look like.

When it came time for the delivery, her parents, Tommy and Connie Wilson, made the trip from her hometown of Hartwell, Ga., to the 1st Fighter Wing Hospital at the Hampton base to be with her.

Just before midnight on Feb. 20, 2007, she gave birth by cesarean section to a healthy boy.

But Wilson never got to hold her baby. According to her medical records, a uterine artery was cut during the delivery, causing massive internal bleeding. The estimated blood loss was equivalent to the total blood volume of an average adult.

Then, during frantic efforts to repair the damage, two surgical sponges were left in Wilson’s abdomen. Twelve hours after giving birth, she was dead.

In the ensuing months, her devastated parents got a second shock when they learned that they had no recourse – even for what seemed to them an egregious case of medical malpractice – because of a legal precedent that prohibits lawsuits when military service members are injured or killed by negligence.

A vocal group of military families, lawyers and members of Congress say the precedent renders service members second-class citizens and should be overturned.

Immediately after the delivery, Wilson seemed OK, awake and making small talk with her parents. They went to her Smithfield home for some sleep.

Around 4 a.m., her husband called. Wilson was going back to the operating room for emergency surgery.

When her parents got back to the hospital, “her room looked like a tornado had hit it,” Connie Wilson said. A piece of medical equipment was overturned and a needle lay on the floor.

Wilson’s parents and husband paced the floor, praying.

“We were even asking the Lord to take us and not take Cindy,” Connie Wilson said.

The next thing the Wilsons saw of their daughter was when she was loaded into an ambulance for transfer to Riverside Regional Medical Center in Newport News. Something told them it was over.

Tommy Wilson turned to his wife and said, “Connie, our baby’s gone.”

Cindy Wilson was pronounced dead an hour after arriving at Riverside.

In a meeting with the Langley hospital staff, “they really didn’t tell us a lot of anything,” Tommy Wilson said. “We only knew that Cindy bled to death. We didn’t know the cause of it. They didn’t take any blame.”

The commanding officer at the hospital assured the family there would be an investigation, Tommy Wilson said. “We have never heard a word .”

Master Sgt. Anthony Davis, a Langley spokesman, said the case was “thoroughly investigated and peer reviewed” in accordance with Air Force policy. He said he is prohibited from revealing the findings – even to Wilson’s family – by a federal law mandating confidentiality of medical quality assurance records.

Dr. Michael Carozza, the lead obstetrician, did not respond to inquiries from The Virginian-Pilot about the case.

Carozza was 31 at the time, having completed his residency a few months before. His Virginia medical license was issued on Feb. 21, 2007 – the day Cindy Wilson died.

According to the Virginia Board of Medicine’s Web-based directory of licensed Virginia doctors, Carozza has faced no disciplinary action. Information in the directory is self-reported by doctors.

Carozza is still on the obstetrics staff at Langley.

Wilson’s son is being raised by his father, who has remarried.

It was only after requesting and receiving their daughter’s medical records that the Wilsons learned the horrifying details of her care.

When they sought legal redress, the details didn’t matter.

“We talked to lawyers from Washington, D.C., to Texas,” Tommy Wilson said, “and they all told us the same thing: You can’t sue the military.”

The legal precedent barring negligence lawsuits on behalf of military service members goes back nearly 60 years, to a 1950 Supreme Court ruling on a series of cases that became known as the Feres Doctrine.

One of the Feres cases – in a foreshadowing of the Cindy Wilson case – involved a soldier who was barred from suing after an Army doctor left a 30-by-18-inch towel marked “Medical Department U.S. Army” inside him.

There have been similar cases through the decades in which foreign objects – usually sponges – were left inside patients who, because they were military personnel, were barred from suing.

Such cases illustrate how the Feres Doctrine has contributed to substandard care in the military medical system, according to Jonathan Turley, a law professor at George Washington University who for years has been a leading critic of the doctrine.

“We see cases in the military involving conduct that would be viewed as perfectly medieval in the civilian world,” Turley said. “Decades ago, civilian doctors were sued over the practice of leaving sponges in patients. It used to be very common.”

After a few lawsuits, the medical profession came up with a simple solution: Count the sponges before and after the procedure.

Now it’s rare to see that type of malpractice in civilian medicine, Turley said. But because there is no fear of lawsuits , it keeps occurring in military medicine.

“I consider the Feres Doctrine to be one of the most grotesque rules created in the history of this republic,” Turley said. “It has done untold damage to thousands of military personnel and their families.”

In part because the Feres Doctrine bars military personnel from pursuing negligence claims, there are no definitive data comparing military and civilian medical malpractice rates.

One thing is clear, however: What happened to Cindy Wilson is exceedingly rare. According to the U.S. Centers for Disease Control, about 50 women a year die in the United States from all complications of labor and delivery.

The Feres ruling grew out of the Federal Tort Claims Act of 1946, which waived the ancient common-law doctrine of sovereign immunity in certain circumstances to allow lawsuits against the government for negligent acts.

Initially that law was interpreted to forbid lawsuits by military personnel only for combat-related injuries. The Feres decision widened that exclusion to bar any lawsuits over injuries “incident to military service.”

Here’s a sampling of cases in which lawsuits have been barred over the years:

• When sailor Dawn Lambert went to have a fallopian tube removed, military surgeons left five sponges and a plastic marking device in her abdomen. They remained there for months until a second surgery left her infertile.
• For 11 months, Navy Lt. Cmdr. Walter Hardin’s red lesions were classified as eczema. His condition was correctly diagnosed as cancer shortly before he died.
• Air Force Staff Sgt. Dean Witt’s appendicitis was misdiagnosed and he was sent home with antibiotics. When he collapsed at home, he was rushed into surgery and came out brain-dead.
• According to his medical records, Marine Sgt. Carmelo Rodriguez was correctly diagnosed with melanoma when he entered the service. But no one told him about it or suggested any treatment. The cancer spread throughout his body and he died 10 years later.
• Navy Petty Officer Joe Cragnotti went to a military hospital with pneumonia, which is treatable with antibiotics. It went untreated, and he suffered permanent brain damage.

Cragnotti’s mother, Barbara Cragnotti of Medford, Ore., is president of Veterans Equal Rights Protection Advocacy, a group of military families that lobbies to abolish the Feres Doctrine.

“People don’t know about the Feres Doctrine until it happens to them,” she said. “Once you sign on the dotted line, the military can treat you any way they want without any recourse because of this law.”

The ruling has been criticized by judges all across the ideological spectrum. A 5-4 Supreme Court decision reaffirming it in 1987 drew dissents from Justices John Paul Stevens on the left and Antonin Scalia on the right. Scalia wrote that Feres “was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.”

Attempts to repeal the doctrine have surfaced periodically in Congress for more than 20 years, but all have failed. Turley, the law professor, said he is flabbergasted that lawmakers continue to let it stand.

Why have the repeal efforts been unsuccessful?

“Because it would cost a huge amount of money to upgrade the military medical system to meet basic civilian standards,” Turley said. “Congress simply doesn’t want to spend the money. Soldiers and sailors are a real bargain to kill and injure in the United States.”

The latest attempt to repeal Feres is the Carmelo Rodriguez Military Medical Accountability Act of 2009, introduced by U.S. Rep. Maurice Hinchey,

D-N.Y. It’s named for the Marine who died of cancer, a constituent of Hinchey’s.

The measure would allow lawsuits on behalf of military personnel who are killed or injured by medical malpractice. It contains an exception for combat-related injuries and requires that any paid claim be reduced by the amount of any other government compensation resulting from the injury.

Hinchey said the issue is one of simple fairness.

“I think military personnel should be treated in normal ways,” he said. “Their medical issues should be dealt with responsively and attentively, the way we anticipate and expect the medical problems of ordinary citizens should be dealt with. We see far too much negligence in military medical care.”

He conceded, however, that his bill faces a tough fight.

It must overcome objections such as those posed by U.S. Rep. Randy Forbes,

R-Va., who sits on the House subcommittee considering the measure. Forbes’ district includes Smithfield, where Cindy Wilson lived while she was stationed at Langley.

It’s undeniable that military medical care is in need of improvement, Forbes said. He said, however, “I don’t think the answer is always just having more litigation.”

The present system provides compensation for service-

related injuries, regardless of whether they result from negligence, Forbes pointed out.

In Wilson’s case, her family received the standard $100,000 military death benefit and the payout from her $400,000 Air Force life insurance policy. The government covered the burial costs.

Moreover, Forbes said, “How do you look someone in the eye and say we’re going to take a service member who was not in a combat situation and give them an elevated position for compensation and recovery that we would not give to someone who was in combat? I think that would create a huge problem in terms of morale.”

Forbes would not concede that military medicine across the board is inferior to civilian care .

“It depends on where you are,” he said. “There are hospitals across this country in the private sector where I would not want to go and get treated.”

“My first priority would be to say, how do we take the steps to make sure those kinds of negligent things don’t happen?” Forbes said. “Because no amount of money, no amount of litigation, is going to restore a life to someone like Sgt. Wilson.”

Had the family been able to sue over his daughter’s death, it wouldn’t have been about the money, Tommy Wilson said. It would have been about accountability.

“The only reason we would have wanted to sue them was to try to bring light on the way military people are treated,” he said.

“It’s a shame that they’re not given any better medical attention than they are.

“Cindy loved this country. She loved it with a passion. And she loved the military. And it took her life.”

Bill Sizemore, (757) 446-2276, bill.sizemore@pilotonline.com