US Rep. to Renew Bill Over Military Medical Suits

By MITCH STACY | June 30, 2011

A congressman said Tuesday he’ll renew efforts to strip military hospitals of their protection against lawsuits over mistakes made in treating service members, now that the U. S. Supreme Court has declined to hear a case that could have done away with the protections.

The Supreme Court on Monday did not comment in refusing to hear a California case, Witt vs. U.S., that activists had considered their best chance in a generation to remove malpractice liability shields for military hospitals.

The case concerned a 25-year-old Air Force staff sergeant, Dean Patrick Witt, who died after a nurse put a tube down the wrong part of his throat during a routine appendectomy. A 1950 Supreme Court decision known as the Feres Doctrine blocked a lawsuit by his family seeking redress from the hospital.

The effort to change the law has gotten wide support from military officers and veterans groups, including seven that had filed briefs in Witt’s case to demonstrate the public’s interest to the justices.

After the Supreme Court declined to act, U.S. Rep Maurice Hinchey said he’ll reintroduce legislation this year to change the law, but he’s likely facing an uphill battle. The law has survived myriad legal challenges over the years and various congressional efforts to overturn it.

In 2009, a bill co-sponsored by the New York Democrat – in the name of a 29-year-old Marine sergeant and Iraq war veteran who died of skin cancer his family claims was misdiagnosed – got some traction, but not enough. Republican lawmakers derided the measure, saying that opening up the military to lawsuits would be expensive and benefit trial lawyers more than service families.

If the law is changed, it could expose the federal government to billions of dollars in liability claims. That makes it highly unlikely a divided Congress desperate to cut expenses will act on its own to change it.

The Congressional Budget Office estimated it would cost the government an average of $135 million every year in claims. If the law were made retroactive, the estimated price tag was $2.7 billion over the next 10 years.

Hinchey argued that the cost would be less than estimated because the law would result in a better level of care in military hospitals and fewer negligence claims. He said federal prisoners have more rights than service members and their families when it comes to seeking damages for medical malpractice.

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

Jamal Alsaffar, whose Austin, Texas, law firm represented the Witt family, said he and other activists had high hopes that this case would be the one to change the law. He sees Hinchey’s effort in Congress as the best hope now.

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

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